Citation Nr: 1303043
Decision Date: 01/30/13 Archive Date: 02/05/13
DOCKET NO. 09-14 840 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for a left hand/wrist disorder, to include as secondary to service-connected residuals of a fracture of the right wrist.
2. Entitlement to a rating in excess of 10 percent for the service-connected residuals of a fracture of the right wrist.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
G. E. Wilkerson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1952 to September 1955.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the RO.
In his Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, in a September 2011 correspondence, the Veteran expressed that he wished to withdraw his request for a hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012).
A review of the Veteran's Virtual VA electronic claims file reveals no additional records.
The Board notes that the record includes additional VA outpatient treatment records and VA examination reports associated with the claims file subsequent to the February 2010 Supplemental Statement of the Case. However, this evidence does not pertain to the issues on appeal. Under these circumstances, the evidence is not considered pertinent additional evidence warranting a remand pursuant to 38 C.F.R. § 20.1304.
The statements from the Veteran and his representative discuss a claim of service connection for a psychiatric disability, bilateral weak feet, a back disability, a neck disability, the loss of vision, and the loss of a tooth. In addition, the Veteran indicated that he was entitled to an increased rating for his service-connected peptic ulcer disease with gastroesophagel reflux, status post subtotal gastrectomy. As these matters are not currently before the Board, they are referred to the RO for appropriate action.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The issue of service connection for a left hand/wrist disability, to include as secondary to service-connected residuals of a fracture of the right wrist is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The service-connected residuals of a fracture of the right wrist is shown to be manifested by pain with limitation of motion of the wrist; ankylosis of the wrist has not been shown.
CONCLUSION OF LAW
The criteria for the assignment of a rating in excess of 10 percent for the service-connected residuals of a fracture of the right wrist have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.71a, Diagnostic Code 5003, 5010, 5214, 5215 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The RO provided a VCAA notice letter to the Veteran in March 2008. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.
The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the March 2008 letter.
The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained.
The VA treatment records dated through 2012 are associated with the claims folder. The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim.
The Veteran underwent VA examinations in April 2008 to determine the nature and severity of his residuals of a fracture of the right wrist.
Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
General Rating Criteria
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1.
VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3.
Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7.
When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594.
In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).
The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.
To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.
The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).
Analysis
Historically, the RO granted service connection for the residuals of a fracture of the right wrist in a July 1957 rating decision. A noncompensable rating was assigned, effective on May 31, 2007. The Veteran filed the instant claim for increase in September 2007. He appeals from an August 2008 rating decision assigning a 10 percent rating for the disability, effective on the September 6, 2007, date of receipt of claim.
The Veteran's residuals of a fracture of the right wrist are rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (arthritis, due to trauma). This code provides that the disability is to be rated as degenerative arthritis.
Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved.
Limitation of motion of the wrist is evaluated under Diagnostic Code 5215. Under this code, 10 percent is the highest evaluation is assignable for palmar flexion that is limited in line with the forearm or when dorsiflexion is less than 15 degrees regardless of whether the major or minor extremity is affected. See 38 C.F.R. § 4.71a, Diagnostic Code 5215.
Normal range of motion of the wrist is: dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I.
The only other diagnostic code that relates to a wrist disability is Code 5214, which is evaluated based on ankylosis.
Under this code, a 30 percent evaluation is assigned for favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion. A 40 percent evaluation is available for ankylosis in any other position, except favorable, and a 50 percent evaluation is available for unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5214.
Diagnostic Codes 5214 and 5215 distinguish between the major (dominant) and the minor (non-dominant) arm. The rating criteria noted above pertain to the dominant arm since the Veteran is shown to be right handed.
The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).
The Veteran was afforded a VA examination in April 2008 to determine the severity of his right wrist disability. The Veteran reported that he initially injured his right wrist in service after falling from a telephone line, causing a simple fracture of the right wrist. He had a cast applied, resolving the discomfort. He had no further trauma, injuries, or surgeries to the wrist. He described symptoms of chronic, constant, achy pain of the right wrist, which he rated a 5 out of 10 on the pain scale. He denied and weakness, swelling, heat, or redness.
The Veteran did admit to a general weakness and giving way of the wrist, dropping objects less than 20 pounds. Also, the Veteran endorsed locking of the wrist, but flexion and extension exercises released the locking immediately. He did admit to a chronic, constant stiffness of the wrist. He stated that there were no precipitating factors, but any movements, usage, or cold conditions precipitated the discomfort.
The Veteran did not use any hand brace or wrist splint, but had used a splint in the past with moderate relief. He said that he was able to perform his usual activities of daily living, though it was difficult to button clothing due to the arthritic condition of his hands. His severe arthritis in the hands and fingers caused poor dexterity. There was no impact on employment as the Veteran was retired.
On examination, the examiner observed that the Veteran was right hand dominant. The wrist was symmetrical in appearance, with no redness, swelling, or edema. There was a slight enlarged bony prominence of the right styloid process of the radius. There was no redness, swelling, or edema noted. There were no further abnormal bony prominences, no abnormal musculature, and no abnormal masses. Upon palpation, joints were cool to the touch. There was no other joint involvement. There was pain upon palpation at the right lateral aspect of the wrist. Otherwise, the wrist was unremarkable.
Range of motion testing revealed right wrist dorsiflexion to 60 degrees, with complaints of pain at the endpoint of motion. Wrist palmar flexion was from 0 to 60 degrees, with complaints of pain also at the endpoint of motion. Radial deviation was to 15 degrees, with complaints of pain at 15 degrees, while ulnar deviation was to 25 degrees with complaints of pain beginning at 20 degrees. Repetitive range of motion did not change degrees or cause further pain or weakness, incoordination, or easy fatigability. The limiting factor was pain. There were no flare-ups, muscle atrophy, weakness, paralysis, or contractures. An x-ray revealed degenerative joint disease of the right wrist and a resolved fracture of the right wrist.
VA outpatient treatment records reflect that the Veteran complained of bilateral hand pain in March 2008. He noted that he experienced a constant, dull, hand pain which he attributed to arthritis. The pain increased when he extended or flexed the fingers. He took medication, which he indicated did not provide much relief. An April 2008 report notes degenerative joint disease of the wrist.
VA outpatient treatment records otherwise discuss the Veteran's general joint pains and arthritis, but do not discuss the right wrist in particular.
Statements from the Veteran's son and friend reflect their observations of the Veteran's struggles with chronic pain and body aches, though neither specifically discussed the Veteran's right wrist.
As noted, the only diagnostic code relative to the wrist that provides for an evaluation in excess of 10 percent is based on the presence of ankylosis.
Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).
Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).
On this record, the Board finds no basis for finding that the Veteran is experiencing ankylosis of the right wrist. Although there was some reduction in movement noted on examination in April 2008, there is no evidence of immobility, stiffening or fixation of the right wrist.
Contrary to the Veteran's assertion, consideration of the DeLuca factors does not mandate a higher evaluation. On the VA examination, none of the factors were present and even though pain was present on the endpoints of range of motion, there was no additional pain or limitation with repetition.
These findings, as well as the Veteran's subjective complaints, fail to show that any of the DeLuca factors that equate with level of incapacity consistent with or even approaching one manifested by ankylosis of the right wrist. Consequently, a higher evaluation under Code 5214 is not assignable.
The Board has also considered whether any other diagnostic code provides a basis for higher rating for the Veteran's service-connection residuals of a fracture of the right wrist, but has found none.
The Board has considered the Veteran's representative's contention that his arthritis of the fingers and carpal tunnel syndrome should be considered in the Veteran's rating; however, these are separate disabilities and service connection is not in effect for any other disability of the right hand or wrist.
For all the foregoing reasons, the Board finds that a rating in excess of 10 percent is not assignable for the service-connected residuals of a fracture of the right wrist.
The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the service-connected residuals of concussive syndrome are exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1).
The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).
In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.
If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).
Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).
The Board finds that the rating criteria used to evaluate the service-connected residuals of concussive syndrome reasonably describe his disability level and symptomatology.
There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability.
Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.
Therefore, the Veteran's disability picture is contemplated by the rating schedule
and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).
Finally, the Board considered the doctrine of reasonable doubt, however, as the
preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.
ORDER
A rating in excess of 10 percent for the service-connected residuals of a fracture of the right wrist is denied.
REMAND
The issue of service connection for a left hand/wrist disability is found to require additional development in this case.
The Veteran contends that he is entitled to service connection for a left hand or wrist disability, as he believes that he initially injured his left wrist during the same fall in service that caused a fracture of the right wrist.
In addition, the Veteran's representative has indicated that the Veteran's problems with the left hand and wrist may stem from overuse of the left hand due to his service-connected right wrist disability.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
While the Veteran's service treatment records do not document a left hand or wrist injury, or complaints related to the left hand or wrist, they do indicated that he fractured his right wrist in December 1954 as a result of falling off of a telephone pole. He underwent closed reduction of the facture and the wrist was then immobilized in a cast.
Following service, the Veteran's VA outpatient treatment records reflect that the Veteran complained of bilateral hand pain in March 2008. He was referred for x-rays, and the examiner suspected degenerative joint disease.
The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals, such as wrist pain. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002).
VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83.
Given that the record reflects possible a left hand/wrist disability that might have been incurred in service or be caused or aggravated by the Veteran's service-connected right disability, the Board finds that medical opinions-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claim for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Accordingly, this remaining matter is REMANDED to the RO for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. The RO should take appropriate action to send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims for service connection for left hand/wrist disability. If the Veteran identifies any other pertinent medical records that have not been obtained, the AOJ should undertake appropriate development to obtain a copy of those records. If the RO is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence.
2. After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the RO should arrange for the Veteran to be scheduled for an examination by a qualified examiner. The entire claims file must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.
The examiner should clearly identify all current left hand or wrist disability(ies) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current left hand or wrist disability was incurred in service or is otherwise medically related to service, to include the December 1954 fall from the telephone pole, or was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by his service-connected residuals of a right wrist fracture.
If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible.
The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.
The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report.
3. After completing all indicated development, the RO should readjudicate the Veteran's claim in light of the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity for response.
Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs